The Unjustified Policy Against a Market in Kidneys

In this paper, I present two types of arguments against the prohibition as they apply to a regulated market in kidneys from living suppliers: (1) the utilitarian argument and (2) the argument from non-uniqueness. The utilitarian argument shows a regulated market is likely to result in a significant increase in overall well-being. The international guidelines and treaties supporting the prohibition invariably quote the harm associated with the illegal organ trade; yet, a regulated market does not share the characteristics of the illegal trade that gives rise to such harm. I argue that objections to such a market claiming that it would result in poor health outcomes, lead to crowding-out, and harm the global poor are unfounded. The argument from non-uniqueness, on the other hand, focuses on three objections to the market following the pattern of widely quoted principles of bioethics: objections from autonomy, “do no harm” (and beneficence), and justice. I argue that these objections, if taken seriously, apply equally to the sale and donation of kidneys, the latter of which is unanimously endorsed in all international guidelines and treaties. Unable to identify any relevant unique aspect of a market, these objections fail to justify an exclusive prohibition of a market in kidneys.